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The Law Blogger is a law-related blog that informs and discusses current matters of legal interest to readers of The Oakland Press and to consumers of legal services in the community. We hope readers will  find it entertaining but also informative. The Law Blogger does not, however, impart legal advice, as only attorneys are licensed to provide legal counsel.
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Thursday, September 6, 2018

Surfers vs the Billionaire

land use
Martin's Beach courtesy of the LA Times
If you attempt to remove access to a good surf spot anywhere along the Southern California coastline, be prepared to spend some money. That's what billionaire Vinod Khosla, co-founder of Sun Microsystems, has vowed to do: spend his money -and he has a lot of it- to make a legal point in a significant piece of property litigation heading to the SCOTUS.

Martin's Beach is a secluded surfing spot south of Half Moon Bay in California. For more than a century, the owners of this 90-acre sand crescent provided liberal public access to the beach via a service road. In addition to the road, the owners improved the property with a parking lot, restrooms and a small store.

A decade ago, Khosla purchased all 47-cottages that sit along this prime bundle of coastal parcels for a cool $32 million. Then he promptly closed the gate to the access road, hired security, removed the restrooms, shut down the parking lot and shuttered the store. He's been in litigation ever since and the case will be argued before the SCOTUS this fall with an opinion resolving the matter -once and for all- in the spring.

The Surfrider Foundation brought the law suit that has made its way to the SCOTUS. Public access to "the beach" is enshrined in California's state constitution and in the California Coastal Act

Khosla, through his Martin's Beach LLC, is equating the the operation of the state constitution and the Coastal Act to an uncompensated "taking" of his property in violation of the 5th Amendment to the U.S. Constitution which provides that no private property shall be taken by the government without just compensation.

For their part, both the California Coastal Commission and San Mateo County assert that Khosla must maintain the same level of access to the beach, or obtain a permit from the county allowing him to reduce the access. California has developed a long-standing governing principle: the beach cannot be privatized.

Khosla, described in a recent NYT Sunday Business article as a typical venture capitalist -"aggressive, shamless, obsessive and optimistic", has vowed to litigate Martin's Beach for the rest of his life. At age 63, he is the latest billionaire to use his millions to seek privatization of a choice parcel of oceanfront property. Billionaire David Geffen's failed attempt at the turn-of-the-Century to close-off a chunk of Malibu comes to mind.

Along the way in this litigation, the California Coastal Commission offered Khosla $3 million to open the gate to the access road and have his security guards stand down. In rejecting the offer, Khosla, through a phalanx of lawyers, put a much higher price tag for what he sees as a compromise in principle to his privacy and his right to private ownership of property. Ironically, Khosla openly regrets ever purchasing the property and claims to have never set foot on Martin's Beach.

The case wound its way through California's state court system, culminating in a decision by the California Court of Appeal that upheld injunctive relief to beach access granted by the county trial court. Although the California Supreme Court declined further review, Khosla's highly-paid super-lawyers convinced the U.S. Supreme Court to grant certiorari.

SCOTUS, in granting certiorari to the Martin's Beach petition, now considers the following issues:
1. Whether a compulsory public-access easement of indefinite duration is a per se physical taking. 
2. Whether applying the California Coastal Act to require the owner of private beachfront property to apply for a permit before excluding the public from its private property; closing or changing the hours, prices, or days of operation of a private business on its private property; or even declining to advertise public access to its private property, violates the Takings Clause, the Due Process Clause, and/or the First Amendment. 
The case will now be briefed by the parties with several interest groups expected to weigh-in via amicus status. Stay tuned as we update you on the briefing schedule and oral argument, expected to be scheduled some time next spring.

Post #619

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